5 November 2024
NEWS FROM THE COURTS
CJEU judgments
Preliminary reference by Croatian court concerning judicial fairness and external influence on judicial decisions
The preliminary ruling requests concern the interpretation of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union, arising from three separate cases involving the Croatian Financial Agency and the initiation of court-supervised administration proceedings. The Court emphasizes that it can only interpret EU law within the limits of its jurisdiction, particularly in relation to requests for preliminary rulings under Article 267 TFEU. The absence of any indication from the referring court that the disputes involve EU law means the Court cannot interpret Article 47 of the Charter. However, it confirms its jurisdiction under the second subparagraph of Article 19(1) TEU, which mandates effective judicial protection, applicable to national courts dealing with EU law matters.
The judgment highlights the necessity of judicial independence and impartiality, stressing that national laws must not allow external influences on judicial decisions. It addresses problematic practices, such as requiring a judicial decision to be approved by a registrations judge or allowing a section meeting to impose binding legal positions on a panel. Such practices undermine the right to fair hearing and effective judicial protection by preventing parties from exercising their rights and introducing potential bias. The Court concludes that these mechanisms are incompatible with EU law, reinforcing that only the judicial panel responsible for a case should decide on its outcome, thereby upholding the essential principles of the rule of law and judicial fairness.
Preliminary reference by Lithuanian court concerning nomination criteria for judges
The case concerns the nomination process for a judge at the General Court of the EU, where Valančius challenged the Lithuanian Government’s decision to nominate a candidate who ranked second in the selection process, rather than himself, the highest-ranked candidate. This situation raises critical issues regarding compliance with EU law, particularly in terms of judicial independence and the criteria for nominations. The Lithuanian selection procedure involves a working group that evaluates candidates against specific criteria and submits a ranking to the government, prompting questions about whether nominations can be based solely on professional competence and if a government can bypass the highest-ranked candidate without jeopardizing judicial independence under EU law.
The Vilnius Administrative Court referred two significant questions regarding the nomination criteria for judges at the General Court. The Court confirmed its jurisdiction over the interpretation of EU law in relation to national judicial nomination processes, asserting that Member States must adhere to EU obligations during these procedures. Ultimately, the Court ruled that a Member State’s government may nominate a candidate who is not the highest-ranked from a list produced by independent experts, provided that the nominee meets the necessary standards of independence and competence. This ruling highlights the importance of maintaining judicial independence while allowing flexibility in national nomination practices, ensuring that the fundamental requirements for judicial appointments are upheld.
The case involves two individuals who lost family members in the unsolved aftermath of the 1999 Kosovo conflict. In 2008, the EU established Eulex Kosovo to investigate such crimes. Unsatisfied with Eulex’s handling of their cases, the individuals claimed their rights were violated and sought damages from the General Court, which dismissed their claim for lack of jurisdiction. Both the individuals and the Commission appealed that decision.
Appeals concerning the jurisdiction of the Court and the CFSP
The Grand Chamber ruled that EU legal principles, including respect for fundamental rights, apply to the Common Foreign and Security Policy. The Court confirmed its jurisdiction over acts not directly tied to EU political choices, including inadequate investigations, lack of legal aid, and failures by Eulex Kosovo to address human rights violations.
Appeal concerning dynamic pension systems and legal certainty
A group of appellants, including Maria Teresa Coppo Gavazzi, is contesting a judgment from the General Court, which dismissed their attempts to annul notes from the European Parliament adjusting their pension amounts due to the implementation of Decision No 14/2018 from the Italian Chamber of Deputies. They argue that the General Court misinterpreted Articles 74 and 75 of the Implementing Measures and infringed upon their rights to legal certainty and property under the Charter of Fundamental Rights. The appellants claim that the dynamic pension system adversely affects their acquired rights and assert that the General Court failed to adequately consider their late notification regarding Decision No 14/2018.
The Court finds the appellants’ arguments unpersuasive, affirming the General Court’s conclusions that the dynamic system is applicable to former Members of the European Parliament and does not violate their rights. It clarifies that while pensions are acquired rights, the amounts can be adjusted under the dynamic system without infringing upon these rights. The Court also ruled that the Head of Unit was authorized to make decisions regarding pensions and that the General Court’s interpretation aligns with EU law. Consequently, the appeal is dismissed in its entirety.
Prohibition on legal advisory services under EU Sanctions against Russia
In response to Russia’s aggression toward Ukraine in 2022, the Council of the European Union implemented a series of sanctions aimed at increasing pressure on Russia, including a ban on providing legal advisory services to the Russian government and Russian entities, except for matters related to judicial, administrative, or arbitral proceedings.
The Belgian bar associations, including the Dutch Bar Association in Brussels, the Paris Bar Association, and the association Avocats Ensemble (ACE), challenged this ban, arguing that it was unwarranted and violated fundamental rights that guarantee access to legal counsel, attorney-client confidentiality, and the independence of lawyers. They asserted that it undermined the rule of law.
The Court affirmed that everyone has the right to effective judicial protection, as ensured by the Charter of Fundamental Rights of the European Union, which includes the right to legal representation in actual or potential disputes. However, it determined that the challenged ban does not violate this right. The Court clarified that the general prohibition on offering legal advisory services to the Russian government and Russian entities does not apply to advice related to ongoing judicial, administrative, or arbitration proceedings, thus being limited to non-litigation legal counsel. Additionally, it held that advice to natural persons is exempted by the ban. It also highlighted the importance of lawyers’ independence in ensuring citizens’ right to effective legal remedies in connection with judicial matters. The prohibition does not hinder lawyers’ ability to provide services related to concentious legal proceedings, thereby maintaining their essential role in upholding justice. The Court concluded that the fundamental duty of lawyers to uphold and defend the rule of law may be subject to restrictions justified by the EU’s objectives of general interest, provided such restrictions do not disproportionately impact the core of their professional responsibilities. It affirmed that the prohibition aligns with these objectives and is justified within the framework of EU sanctions against Russia.
Advocate General Opinions
Preliminary ruling by Bulgarian court concerning impartiality of courts and judicial protection.
The case centers on Vivacom Bulgaria EAD’s damages claim against the National Revenue Agency and the Supreme Administrative Court (VAS) for alleged misapplication of EU law regarding VAT. Vivacom raised concerns about the VAS’s impartiality, as the court would be judging its own actions. The VAS referred a question to the Court of Justice of the EU to determine if EU law allows a court to adjudicate its own liability claims, thereby questioning its independence.
The Advocate General highlighted the objective test of impartiality, which considers public perception of bias when a court acts as both judge and party. He noted that while factors like the identity of the judges and the defendant’s status can influence perceptions, as long as national rules minimize perceived bias, they may comply with EU principles of judicial protection.
ECtHR judgments
Principles of impartiality for national judges
The case involves claims of bias against Judge L.M. of the Supreme Court, who participated in dismissing the applicants’ claims. The applicants argued that impartiality was compromised due to the judge’s assistant being the daughter of the lawyer representing the opposing party. They filed a complaint under Article 6(1) of the Convention, which guarantees the right to a fair and impartial hearing.
In its judgment, the Court examined the principles of impartiality, recognizing both subjective and objective aspects. While it found no evidence of personal bias from Judge L.M., it highlighted the potential conflict of interest arising from his assistant’s familial ties to the opposing party’s lawyer. The Court noted the lack of clarity regarding the assistant’s role in the proceedings and criticized the Supreme Court for failing to adequately address the applicants’ concerns about impartiality. Ultimately, the Court concluded that the applicants’ fears were objectively justified, leading to a violation of Article 6(1) for both applicants due to insufficient procedural safeguards and the appearance of bias in the judicial process.
Right to access a court and State liability for damages caused by judicial bodies
The case centers on the dismissal of an action by the applicant, a former employee of the Greek embassy in Germany, against the Greek State concerning compensation related to a judgment by the Court of Cassation. The applicant sought an increase in his expatriation allowance for dependent children but faced rejection due to legal distinctions between employee types. Although he received some compensation for a later period, his earlier claims were dismissed.
The applicant subsequently appealed to the European Court of Human Rights, claiming that the Court of Cassation’s rejection violated his right to access a court under Article 6(1) of the Convention. The Court found that the formalistic approach of the Court of Cassation was disproportionate, resulting in a violation of the applicant’s rights.
The Court ruled that the applicant had a valid claim under domestic law, affirming that the State is liable for damages caused by its judicial bodies. It also rejected the Government’s arguments regarding the applicant’s victim status and claims of non-exhaustion of domestic remedies, determining that the Supreme Administrative Court’s ruling had effectively denied him access to justice. The Court underscored the importance of practical and effective access to courts, which cannot be merely theoretical. It concluded that the restriction imposed by the Supreme Administrative Court created an undue burden, thus impairing the essence of the applicant’s right to court access.
Pre-trial detention and freedom of expression: Arbitrary interference in political speech
The application concerns the pre-trial detention of the applicant, co‑chair of the Democratic Regions Party, who was charged with membership of an illegal organization on account of his speeches. The case raises issues under Article 5(1) and (3), and Article 10 of the Convention. Between 27 January 2015 and 18 April 2016 the applicant, in his capacity as the co-chair of an opposition political party, made a number of speeches and statements at party meetings, public demonstrations and press conferences. On 12 November 2015, the Diyarbakır public prosecutor launched a criminal investigation against the applicant, accusing him of membership in the PKK/KCK based on his political speeches. In May 2016, he was arrested and his detention extended despite his objections. During questioning, the applicant defended his speeches, asserting they were criticisms of government policy, advocating for civil and political resistance, not violence. He argued his remarks on “self-determination” and terms like “struggle” referred to non-violent political actions.
The Court found that the applicant’s pre-trial detention violated Article 10, as it was based solely on his political speeches without concrete evidence linking him to an illegal organization, thus failing to protect his freedom of expression from arbitrary interference. Additionally, under Article 5(1) and (3), the detention lacked reasonable suspicion, making it unjustifiable and in breach of his right to liberty and security.
Call for legislation regarding the prolonged detention of unaccompanied minors
The case concerns various periods of detention of presumed minors and the effectiveness of remedies in relation to their detention and the conditions thereof. The case concerns a group of applicants who claim to have been minors, aged between 16 and 17, when they arrived in Malta in 2022 after being rescued at sea. They were detained at Ħal Far Initial Reception Centre (HIRC) under conditions they describe as severely inadequate, without being given documentation justifying their detention. The applicants report overcrowding, poor hygiene facilities, restricted communication access, insufficient winter clothing, and a lack of appropriate medical and psychological support. The court, in a unanimous ruling, declared the application admissible and found several violations of the Convention. Specifically, it determined that Article 3 had been violated in relation to three of the applicants. It also held that there was a breach of Article 13 in conjunction with Article 3 for all applicants. The court identified violations of Article 5(1) concerning the applicants’ right to liberty and security and a breach of Article 5(4) regarding the right to a prompt review of detention. Lastly, it lifted the interim measure previously imposed on the Government under Rule 39. Lastly, the Court held under Article 46 (binding force and execution of judgments) that national-level reforms are needed to implement legislation ensuring the Immigration Appeals Tribunal’s independence and impartiality, as well as to create an effective remedy for complaints concerning ongoing detention conditions.
Ineligibility to have life sentence reduced to 30 years’ imprisonment: no violation of art. 6(1) and 7 of the Convention
The case concerned the refusal by the domestic courts to grant the applicant’s request to have his life imprisonment sentence reduced to thirty years. The applicant argued that this refusal stemmed from his decision to be tried under the summary procedure. Unlike in Scoppola v. Italy (no. 2) ([GC], no. 10249/03, 17 September 2009), the applicant had opted for the summary procedure at a time when the legislation he claimed to be more lenient (Law no. 479 of 1999) was no longer in effect. As a result, the application raised issues under Article 7 and Article 6(1) of the Convention.
The primary question before the Court was whether, in light of the principles established in the Scoppola case, the timeframe for identifying the most lenient law (or lex mitior) should be considered in abstracto from the commission of the offense until the final conviction. Alternatively, the Court had to consider whether, in the case of simplified procedures, which required a request by the accused, the relevant timeframe should have commenced from the moment the accused made such a request.
The Court ruled that there was no violation of Article 7, as the applicant’s sentence was appropriately determined based on the specific circumstances and applicable laws at the time of his procedural choices. Additionally, the Court found no violation of Article 6(1), concluding that the applicant’s waiver of procedural safeguards in opting for the summary procedure was clear and that the penalty imposed was foreseeable within the legal framework.
Expulsion of an asylum-seeker from Germany to Greece under an administrative arrangement, refoulement, degrading treatment
The case involved the removal of the applicant, a Syrian national who had expressed his intention to seek asylum, from Germany to Greece under an administrative agreement between the two countries. The applicant was expelled on the same day he arrived in Germany, without his asylum request being processed. He alleged that Germany had violated Article 3 of the Convention. Additionally, the case addressed the conditions and legality of the applicant’s subsequent detention in Greece, as well as the judicial control of that detention, under Articles 3, 5(1) and 4 of the Convention.
The Court found that the immediate removal of the Syrian asylum-seeker from Germany to Greece was conducted without a proper assessment of the individual risk he might face or a guarantee of adequate asylum procedures in Greece. At the time, there was no sufficient basis to assume that Greece had measures in place to protect against refoulement or to prevent treatment contrary to Article 3, nor did the administrative arrangement provide such assurances. The German authorities did not perform an individualized risk assessment and removed the applicant hastily, denying him access to legal representation.
Concerning Article 3, the Court ruled that the applicant’s detention in Greece for over two months in a police station lacking basic amenities constituted degrading treatment. Under Article 5(1), the Court acknowledged that the overall duration of the applicant’s detention in Greece, pending deportation, was justified. However, under Article 5(4), the Court found that there had been no examination of the legality of the detention, thereby violating the applicant’s right to have the lawfulness of his detention reviewed.
Violation of the presumption of innocence
The case involved an alleged violation of the presumption of innocence under Article 6(2) of the Convention. The applicant had filed for compensation from the State following the discontinuation of criminal proceedings against him, which were terminated due to being time-barred. He claimed that the way the civil courts handled his compensation claim infringed on his right to be presumed innocent.
The Court found that the reasoning and language used by the civil courts in dismissing the applicant’s compensation claim effectively implied that he was criminally liable, despite the discontinuation of the criminal proceedings. This amounted to an explicit imputation of guilt, undermining the applicant’s presumption of innocence. As a result, the Court ruled that there had been a violation of Article 6(2), as the presumption of innocence had not been upheld in the compensation proceedings.
